Citation Nr: 1302714
Decision Date: 01/24/13 Archive Date: 01/31/13
DOCKET NO. 05-02 629 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).
2. Entitlement to an initial rating greater than 10 percent for peptic ulcer disease (PUD).
REPRESENTATION
Appellant represented by: Jeffrey J. Bunter, Attorney
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
The Veteran had active service from February 1962 to May 1966.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which granted, in pertinent part, the Veteran's claim of service connection for PUD, assigning a 10 percent rating effective March 30, 2001, and denied the Veteran's claim of service connection for an acquired psychiatric disability, to include PTSD.
In March 2007, the Board remanded the Veteran's appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development.
In November 2010, the Board denied the Veteran's claims for a higher initial rating for PUD effective prior to September 11, 2008, and for service connection for an acquired psychiatric disability, to include PTSD. The Board also remanded the Veteran's higher initial rating claim for PUD effective from September 11, 2008, to the RO for additional development. The Veteran, through his attorney and VA's Office of General Counsel, timely filed a Joint Motion for Remand ("Joint Motion") of the Board's November 2010 decision with the United States Court of Appeals for Veterans Claims ("Court"). In August 2011, the Court granted the Joint Motion and vacated and remanded the Board's November 2010 decision.
In April 2012, the Board again remanded these claims for further evidentiary development consistent with the terms of the Joint Motion.
Between May and September 2012, the RO attached the Veteran's most recent clinical records of VA treatment to the Virtual VA electronic storage system. These records were reviewed by the RO in the September 2012 supplemental statement of the case (SSOC).
In December 2012, the Veteran's attorney submitted a motion for another hearing before the Board. No good cause was cited for the need of an additional hearing. A claimant is entitled to "a hearing" before the Board, which was provided to the Veteran in September 2005. 38 C.F.R. § 20.700(a). Otherwise, the record reflects that, in February 2012, the Veteran's attorney submitted additional evidence and argument to the Board which was considered in the April 2012 remand decision. On this record, the Board finds that the Veteran has already been afforded his right to "a hearing" pursuant to 38 C.F.R. § 20.700(a) and there is no showing of good cause to justify the scheduling of an additional hearing.
FINDINGS OF FACT
1. The Veteran has not manifested PTSD during the appeal period.
2. The Veteran's variously diagnosed psychiatric disorders, to include dementia and depression not otherwise specified (NOS), first manifested many years after service and are not related to event(s) during active service; a psychosis did not manifest in service or within the first postservice year.
3. The Veteran's service-connected PUD has been manifested by symptoms of early satiety with mild upper abdominal discomfort, mild nausea, brief emesis, epigastric burning and anorexia which have not resulted in moderate ulcer disease with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, continuous moderate manifestations, anemia or weight loss.
CONCLUSIONS OF LAW
1. An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by active service, nor may an acquired psychiatric disorder be presumed to have been incurred in service, to include as a result of exposure to herbicides. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.104, 3.303, 3.307, 3.309 (2012).
2. The criteria for an initial evaluation in excess of 10 percent for PUD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7305 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder which either first manifested during active service or, alternatively, results from events during active service. He also seeks an initial rating greater than 10 percent for his service-connected PUD. Before assessing the merits of the appeal, VA's duties to the claimant must be examined.
VA's duties to the claimant
The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).
Duty to notify
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).
Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
With respect to the claim for service connection for a psychiatric disorder, a pre-adjudicatory RO letter dated April 2001 advised the Veteran of criteria for establishing entitlement to service connection for a nervous disorder, to include PTSD, as well as the relative duties on the part of himself and VA in developing his claim.
Following the 2007 Board Remand, the AMC issued a March 2007 letter which notified the Veteran of the general criteria for determining a disability rating and for determining the effective date of the award. This notice complied with requirements set forth in Dingess, supra. Another VCAA notice letter was issued in March 2010.
Although the Veteran was not provided with content complying notice prior to the initial adjudication as it pertains to the downstream elements of a service connection claim, this timing deficiency was cured with a readjudication of the claim and issuance of an April 2010 supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As the service connection claim remains denied, no prejudice accrues to the Veteran in the untimely notice regarding the downstream elements of a service connection claim.
With respect to the PUD claim, the Veteran is challenging the initial evaluation assigned following a grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before this claim for service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied.
Duty to assist
Next, VA has a duty to assist a claimant in the development of a claim, including obtaining service treatment records (STRs) if needed, obtaining pertinent treatment records, providing an examination when necessary, or other pertinent development. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the STRs and service personnel records (SPRs) are associated with the claims files. The RO has also corroborated the Veteran's exposure to combat events during active service. In July 2012, the Social Security Administration (SSA) informed VA that medical and legal documents pertaining to an SSA disability claim had been destroyed. In July 2012, the RO provided the Veteran notice of the unavailability of SSA records. As such, there is no further duty to assist the Veteran in obtaining these records as the records no longer exist.
The RO has also associated with the claims folder all known and relevant private and VA clinic records. As noted in the Introduction, the Veteran's most recent VA clinic records are located in the Virtual VA electronic records storage system. In February 2012, the Veteran's attorney submitted relevant private medical records
for consideration in this case. There are no outstanding requests for VA to obtain any additional private treatment records for which the Veteran has both identified and authorized VA to obtain on his behalf.
The Veteran was afforded VA examination in August 2012 to evaluate the nature and severity of his service-connected PUD since the inception of this appeal. The examination report reflects an extensive review of the Veteran's gastrointestinal disability history since service, as reflected in the body of the examination report. This examiner discussed the Veteran's multiple gastrointestinal disorders and provided supporting rationale for delineating the service-connected versus nonservice-connected symptoms to the extent medically possible. The associated private and VA treatment records also supplement the record for relevant clinical findings.
The Board, upon review of the August 2012 examination report, finds that all findings necessary to decide the claim were addressed. Since this examination, the Board can find no lay or medical evidence of record suggesting an increased severity of disability to suggest that a higher rating may be possible. Therefore, further examination is not warranted. See VAOPGCPREC 11-95 (Apr. 7, 1995).
VA has also obtained medical opinion as to the nature and etiology of his acquired psychiatric disorders. This examination report, dated August 2012, reflects an accurate assessment of the evidentiary record as found by the Board. The examiner specifically reviewed the STRs and psychiatric complaints documented therein, and provided a reasoned opinion as to why the current psychiatric disorders were not manifest in service or due to an event during active service. The examiner provided the best opinion possible given the current state of medical knowledge.
In Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearing in September 2005, this VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. With respect to the PUD claim, questions were directed towards eliciting the Veteran's testimony regarding the frequency, duration and types of symptoms he experiences. With respect to the PTSD claim, questions were directed towards the stressor details which was an issue in controversy at that time.
In this case, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the hearing. Additionally, any perceived deficiencies were cured with further Board development of the claims pursuant to remand directives. As such, the Board finds that, consistent with Bryant, this VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.
The Board also finds that the RO has fully complied with the Board's April 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (a claimant as a right to RO compliance with Board remand directives). The RO sent the Veteran a letter offering him the opportunity to submit additional evidence, conducted a search for SSA records, and obtained examination reports to evaluate the nature and etiology of his psychiatric complaints as well as the current nature and severity of service-connected PUD.
Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002). Appellate review may proceed.
Laws and Regulations
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the
existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Certain chronic diseases, such as psychosis or organic disease of the nervous system, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. § 3.309(a).
Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997).
A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV). See 38 C.F.R. § 3.304(f). The Court has taken judicial notice of the mental health profession's adoption of the DSM- IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-141 (1997).
Effective October 29, 2008, VA revised it regulations regarding stressor verification when the evidence shows that PTSD was diagnosed during service and the claimed stressor is related to that service. In this circumstance, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 73 Fed. Reg. 64208 (Oct. 29, 2008) (codified at 38 C.F.R. § 3.304(f)(1)).
The Board observes that there is no evidence or argument that the Veteran was diagnosed with PTSD during active military service. Thus, these revised criteria do not apply.
For PTSD diagnosed after service, there must be independent evidence to corroborate the veteran's statement as to the occurrence of a claimed non-combat stressor. 38 C.F.R. § 3.304(f); Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). Effective July 13, 2010, VA revised its regulations to relax the evidentiary stressor verification requirements when a veteran was exposed to fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). See also 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective date of applicability of 38 C.F.R. § 3.304(f)(3) to July 13, 2010).
In this case, the RO has corroborated the Veteran's allegations of exposure to combat stressors. Thus, the stressors claimed by the Veteran have been verified. The issue presented is whether the Veteran manifests PTSD as a result of those verified stressors.
A Veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. The Veteran in this case served in Vietnam and is presumed to have been exposed to herbicides.
If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain disorders may be presumed service-connected, even though there is no record of such disease during service. However, the list of disorders to which such a presumption may be applied does not include a cognitive disorder, dementia, or any other acquired psychiatric disorders.
The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See "Diseases Not Associated With Exposure to Certain Herbicide Agents," 68 Fed. Reg. 27,630 -41 (May 20, 2003).
A claim of entitlement to service connection based on exposure to herbicides may also be established based on medical evidence that a current disease is etiologically related to in-service events. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Combee v. Brown, 34 Vet. 3rd 1039, 1043-5-(Fed. Cir. 1994).
If the Veteran is unable to substantiate his service connection claim on a presumptive basis, the Board is obligated to consider the Veteran's claim on a direct basis, including allowing the Veteran to establish that herbicide exposure was the direct cause of the disorder at issue. See Combee, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran was not precluded under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act from establishing service connection with proof of direct actual causation).
Disability evaluations are determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3.
VA regulations provide that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. 38 C.F.R. § 4.113. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Id.
Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342 and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114.
The Veteran's PUD has been evaluated under DC 7305, which provides for a 60 percent evaluation for severe ulcer disease with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 38 C.F.R. § 4.114, DC 7305. A 40 percent evaluation is assigned for moderately severe ulcer disease with symptoms which are less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. Id. A 20 percent evaluation is assigned for moderate ulcer disease with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations, and a 10 percent evaluation is assigned for mild recurring symptoms once or twice yearly. Id.
The rating schedule provides guidance in the evaluation of gastrointestinal disorders. In particular, 38 C.F.R. § 4.112 highlights the importance of weight loss in the evaluation of the impairment resulting from gastrointestinal disorders. For purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease.
The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102.
A combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. 38 U.S.C.A. § 1154(b); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him/her by relaxing the adjudicative evidentiary requirements for determining what happened in service.
Factual summary
The Veteran's December 1961 enlistment examination reflects no lay or medical evidence of an acquired psychiatric disorder. At that time, the Veteran weighed 120 pounds.
A December 1963 STR referred to the Veteran being a "(c)ompulsive neurotic with paranoid tendencies." He was prescribed Stelazine. He subsequently began to receive treatment for gastrointestinal complaints in December 1963. A June 1964 STR included an impression of ulcerative colitis. On August 3, 1964, the Veteran reported a history of burning pain in the abdomen for years with alternating episodes of diarrhea and constipation. He described having no appetite with weight loss from 140 pounds in October 1962 to 120 pounds currently. He felt tired all of the time, had a dry, bitter taste in his mouth, and had a white film on his tongue. He was given impressions of psychogenic depression and PUD. The examiner ordered a psychiatric consultation, and prescribed Probanthine, Gelusil and Stelazine.
Thereafter, an August 27, 1964 psychiatric consultation again recorded a history of constant epigastric burning pain with alternating constipation and diarrhea. The Veteran also reported a history of occasional depression, constant fatigue, anorexia and weight loss from 140 pounds to 120 pounds over the last two years. His medications included Stelazine, Probanthine and Gelusil. The Veteran reported an increase of gastrointestinal pain symptoms when nervous or upset, which occurred frequently in the evenings. He described being depressed and anxious over the past several years with increased use of alcohol. He had a childhood history of strained relations with his father, being afraid of him. In service, the Veteran described frequently feeling angry with authority figures which he held inside due to fear of retaliation or disciplinary action.
On mental status examination, the Veteran appeared depressed and slightly anxious. He was quite restricted in his expression of thoughts. Otherwise, he was neat and appropriately dressed with his speech being adherent and relevant. The examiner found no evidence of psychosis or organic brain disease. Impressions of depressive reaction and psychosomatic gastrointestinal (GI) disturbance were provided. However, the examiner wanted to rule out peptic ulcer or esophagitis with further testing. The suggested treatment included supportive treatment to allow the Veteran to ventilate his suppressed negative feelings, the use of a tranquilizer with both tranquilizing and mood elevating effects, antacid medications and Probanthine.
Thereafter, the Veteran continued to report gastrointestinal distress. An October 1964 upper GI series test found no ulcer. In November 1964, the Veteran reported being "nervous" since quitting smoking. He was given an additional prescription of Librium. In December 1964, the Librium prescription was changed to Mellaril. An additional upper GI series x-ray examination in January 1965 was interpreted as normal. The Veteran was advised on a bland diet and use of antacids.
In July 1965, the Veteran complained of right-sided stomach pain with a large amount of gas. He was diagnosed with aerophagia. An October 1965 evaluation for upset stomach without nausea or vomiting was assessed as "nervice" stomach. His gastrointestinal complaints continued.
The Veteran's April 1966 separation examination provided normal clinical evaluations of his abdomen and viscera as well as his psychiatric status. He weighed 125 pounds.
In pertinent part, the available postservice medical records reflect that the Veteran suffered a basilar artery transient ischemic attack (TIA) in March 1992. A magnetic resonance imaging (MRI) scan of the brain was interpreted as showing bilateral small lesions which could be related to multiple sclerosis, hypertension, diabetes or atherosclerosis. A GI evaluation reflected an assessment of hypertrophic duodenitis.
The Veteran was next evaluated for chest pain symptoms in 1994. A cardiac evaluation was reported as negative. A GI evaluation noted the Veteran's history of esophagitis and gastroesophageal reflux disease (GERD). The Veteran described occasional nausea and vomiting when drinking too much. An esophagogastroduodenoscopy (EGD) demonstrated non-erosive gastritis.
In March 1996, the Veteran was evaluated for heme positive stool with diarrhea. A March 1997 colonoscopy resulted in a diagnosis of diverticulitis.
The Veteran was hospitalized in October 1997 to investigate his complaint of chest pain. At that time, the Veteran described a history of GERD usually well-controlled with Prilosec. He had a recurrence of epigastric pain with nausea after discontinuing his medications due to loss of a job. An extensive cardiovascular and GI evaluation resulted in discharge diagnoses of unstable angina status post cardiac catheterization, erosive ulcerative duodenitis and erosive gastritis. The Veteran was clinically described as well-nourished and well-developed.
A December 1997 VA clinical record included an impression of a questionable (?) history (hx) of alcohol (ETOH) dementia.
A January 1998 VA Compensation and Pension (C&P) examination report included the Veteran's description of episodes of break-through stomach pain "every now and then." He watched his diet, and avoided hot, greasy or spicy foods. He weighed 163 pounds. The examiner provided a diagnosis of duodenal ulcer, peptic ulcer syndrome, under good control with medication and diet.
A November 1998 MRI of the brain in the VA clinic setting resulted in impressions of lacunar infarctions involving the mid pons, the left internal capsule near the genu, and the right centrum semiovale as well as atrophy.
The Veteran was hospitalized at the John Cochran VA Medical Center (VAMC) in December 2000 due to a history of emesis with "coffee grounds" after drinking 5-6 beers. He also reported a history of intermittent chest pain with shortness of breath (SOB), emesis, headaches, vertigo and diaphoresis that radiated to his left arm. He further described dysphagia to liquids. A nasogastric (NG) tube in the emergency room (ER) demonstrated coffee ground material. An endoscopy was interpreted as showing severe exudative esophagitis, gastritis and possible portal gastropathy with linear ulcers likely secondary to NG tube trauma, and duodenitis with edema and erythema. A biopsy demonstrated Helicobacter pylori gastritis. An abdominal ultrasound showed findings compatible with fatty infiltration of the liver, a right renal stone, and a lesion of the right lobe of the liver probably representing a hemangioma. The Veteran was noted to have a decrease in long-term recall memory.
In March 2001, the Veteran was hospitalized to evaluate his report of nonspecific, left-sided chest pain with nausea and sweating. A cardiac work-up resulted in an assessment of chest pain of non-cardiac origin.
An April 2001 VA endoscopy revealed diverticulitis, internal hemorrhoids and a small polyp.
The Veteran was admitted to VA in September 2001 due to alcohol abuse, dehydration and abdominal pain. There was a question of pancreatitis due to an elevation of amylase, but subsequent work-up indicated a normal pancreas.
A February 2002 VA psychiatric consultation noted the Veteran's history of memory loss for the last three years, coincident with appearance of TIA's. The Veteran described having some dreams or nightmares but he could not remember some of his Vietnam experiences related to memory difficulties. The Veteran described some Vietnam stressors, and the examiner suspected the Veteran missed more significant ones. The examiner provided the following impression:
[I]mpression: probably has ptsd issues, but lead thing is substance and memory issues. I do not think his memory problems are functional. recommend: he is probably in the best place now in the satp program.
A March 2002 VA geropsychiatric consultation reflected the Veteran's report of alcohol drinking since service. He recalled that, when he was in Vietnam, he became depressed and drinking in excess due to guilt of some of his actions. He reported having nightmares, anxiety symptoms and sleep disturbances. He had a history of drinking excessively with intoxication, withdrawal delirium tremens (DTs) and seizures. He had recently been treated for alcoholic pancreatitis. He was on disability and reported feeling depressed most of the time. The examiner provided impressions of alcohol dependence and major depression.
An April 2002 VA gastroenterology consultation included the Veteran's report of diarrhea which was not always a problem. He admitted to eating a lot of fruit and raisins every day. The examiner provided an impression of questionable dietary diarrhea and questionable chronic pancreatitis with a normal magnetic resonance cholangiopancreatography (MRCP) study. It was also noted that the Veteran had probable PTSD, and was being treated for depression.
A September 2002 VA gastroenterology consultation included the Veteran's report of episodes of diarrhea with sharp, knife-like pain of both sides of the lower back, which may at times radiate to the right lower quadrant (rlq). The examiner provided an impression of diarrhea with no evidence of chronic pancreatitis. The Veteran was prescribed Depends undergarments.
On VA Compensation and Pension (C&P) stomach examination in January 2003, the Veteran reported an inservice history of severe stomach pain with diarrhea which required a hospitalization. He also experienced swelling of both feet. Since that time, he experienced recurrent episodes of diarrhea and abdominal cramps. At times, his diarrhea could not be controlled and seeped out of his undergarments. He also had abdominal cramps almost every day with nausea and vomiting once a week. The examiner noted that the Veteran had recently tested positive for Helicobacter pylori. There were impressions that his diarrhea could be due to his diet or chronic pancreatitis. It was also noted that the Veteran was an alcohol abuser, causing malabsorption as a possible cause for diarrhea being investigated. The examination report reflects a review of the Veteran's STRs and the various diagnostic impressions for his gastrointestinal symptoms, to include peptic ulcer disease or psychosomatic gastrointestinal disturbance. Following examination, the following diagnoses were provided:
DIAGNOSIS:
1) Peptic ulcer disease which is stable. It is at least as likely as not that this is the same as he had when in military service.
2) Subjective complaint of diarrhea. The patient has been evaluated for pancreatitis in view of ethanol abuse. There is no definite etiology confirmed. It is less likely than not that his complaint of diarrhea off and on is the same as in military service. The patient may benefit from a psychological evaluation for psychosomatic gastrointestinal disturbance.
On VA C&P PTSD examination in March 2003, the Veteran reported monthly episodes of dreaming of military experiences after seeing war stories. He complained of interrupted sleep, but did not specifically identify dreaming as the cause and was more likely to identify prostate problems. He drank an occasional beer, but had not been engaging in regular drinking. He complained that life was looking monotonous, and that he felt nervous and anxious a good deal of the time. The Veteran was upset because his girlfriend's daughter had recently moved into the home with a new baby. The examiner found no clear evidence of irritability, hypervigilance, concentration problems, emotional numbing, distancing from others, or avoidance activities. The Veteran was not able to specify an any active way in which he avoided regenerating memories or affects associated with his trauma. Following further interview, mental status examination and psychological testing, the examiner provided the following assessment and diagnosis:
ASSESSMENT: The [V]eteran clearly has significant anxiety symptoms which are not phobic and, while he may at one time have shown the complete syndrome of post-traumatic stress disorder, he is not showing it now. His anxiety symptoms, however, are clear enough to warrant clinical attention. They are not of sufficient consistency to warrant a generalized anxiety diagnosis, but anxiety disorder, not otherwise specified, is descriptive. He denies any significant drinking at this time and drug use is not a significant part of his history.
AXIS I: Anxiety disorder, not otherwise specified (there is no clear relation to his military experience) ...
By means of a rating decision dated April 2003, the RO granted service connection for PUD, and assigned an initial 10 percent rating effective March 30, 2001.
The Veteran was treated for alcohol abuse in May 2003 wherein he reported drinking for the last three days after receiving his pension. A June 2003 gastroenterology consultation reflected an assessment that it was unclear whether the Veteran's abdominal pain was related to chronic pancreatitis, gastritis, GERD or less likely biliary tract disease. A July 2003 geropsychiatry note continued diagnoses of major depression and alcohol abuse. A July 2003 gastroenterology consultation provided a diagnosis of chronic pancreatitis, and diarrhea which was "probably a combination of lactose intolerance, funcitional [sic], role of drugs (on many meds) and possibly pathogen, e.g., giardia, related." These symptoms were treated empirically with a prescription of Flagyl.
In August 2003, the Veteran was admitted to the VA lodger substance abuse treatment program. He had been drinking up to a case of beer at a time, and sometimes with a pint of whiskey. He described having a lot of anxiety if not drinking. He also complained that chronic medical problems interfered with his life. He was given diagnoses of alcohol dependence and depression NOS. He weighed 193.7 pounds. It was indicated that his ideal weight was 148 pounds.
A September 2003 VA clinic record noted the Veteran's report of 2-3 semi-formed stools per day which were malodorous with gas, and difficult to flush. A cognitive evaluation indicated that the Veteran's memory impairment involved an inability to remember remote and recent events.
An October 2003 VA clinic record reflected the Veteran's complaint of a 10 pound weight loss due to stomach discomfort, diarrhea, an inability to hold food down, headaches and abdominal pain. The examiner noted that the Veteran had lost 3 to 4 pounds and had mild diarrhea. The Veteran was advised to avoid diary products. A geropsychiatry outpatient note reflected diagnoses of recurrent major depression and alcohol abuse, in remission. The Veteran reported loose stools occurring 4 to 5 times per day.
A November 2003 VA clinic record noted improvement in the Veteran's diarrhea complaints with enzyme supplements. An USG of the right upper quadrant had been negative for any pathological process. The Veteran described episodes of sharp left flank pain, but denied symptoms such as hematuria, burning and pyuria. The examiner provided an impression that the Veteran's diarrhea was likely related to chronic pancreatitis.
A December 2003 VA geropsychiatry outpatient note included the Veteran's report of night awakening due to diarrhea and incontinence. He thought that his diarrhea may be due to taking paroxetine. He did not know the cause of his anxiety.
A January 2004 VA primary care note indicated that a review of the Veteran's GI notes suspected that the Veteran's rectal incontinence was due to chronic pancreatitis and exocrine insufficiency. The Veteran weighed 191.9 pounds. A gastroenterology consultation indicated an impression of lactose intolerance, wherein the Veteran's diarrhea had improved after coming off dairy products.
A May 2004 VA primary care note again reported that the Veteran's diarrhea was likely related to chronic pancreatitis. In July 2004, the Veteran reported abdominal pain and burning with 7-8 episodes of vomiting that day. His symptoms improved with a prescription of a GI cocktail and Prilosec. A gastroenterology consultation attributed the Veteran's vomiting to taking Omeprazole.
A January 2005 VA gastroenterology consultation attributed another episode of vomiting and loose stools to a probable viral infection. A March 2005 geropsychiatry consultation included the Veteran's report of eating well. He was described as overweight.
The Veteran was admitted to VA in May 2005 due to chest pain. A nutrition assessment indicated that the Veteran weighed 188.8 pounds. He reported a good appetite. His laboratory work was suggestive of anemia. His nutritional status was described as mildly compromised. He was discharged with a prescription of Viokase due to chronic pancreatitis. A primary consultation later that month attributed the Veteran's report of chronic diarrhea as either viral/bacterial infectious diarrhea, c.diff diarrhea versus malabsorptive diarrhea secondary to chronic pancreatitis. A July 2005 geropsychiatry consultation noted that the Veteran was intentionally trying to lose weight. An August 2005 colonoscopy was interpreted as showing diverticulitis. It was indicated that there were no findings to explain the Veteran's diarrhea other than a history of chronic pancreatitis with malabsorption as a potential etiology.
At his Board hearing in September 2005, the Veteran testified to peptic ulcer symptoms which included vomiting so severe as to require occasional hospitalizations. He was restricted in the types of food he could eat, and required medication. He had not had any recent episodes of vomiting or regurgitation. However, he later testified that he had vomiting episodes which occurred approximately once per month and lasted up to four days in duration. He had constant diarrhea. He then testified that he had three or four attacks per year of the longer episodes. His symptoms were often triggered with anxiety and nervousness. He also had migraine headaches which caused vomiting. The Veteran also testified to anxiety symptoms since service which caused his gastrointestinal problems.
A February 2006 MRI of the brain was interpreted as showing mild to moderate diffuse brain atrophy, scattered T2 hyperintense foci in the deep white matter likely representing small vessel ischemia, and chronic lacunar infarcts in bilateral deep white matter and right basal ganglia.
An August 2006 geriatric psychiatry consultation reflected a history of the Veteran's recent treatment for c. diff infection. His spouse expressed concern about his 17 pound weight loss with poor appetite since a recent hospitalization discharge.
A November 2006 VA pulmonary consultation indicated that the Veteran had a recent hospitalization due to possible diarrhea. In February 2007, the Veteran was admitted to VA due to an episode of syncope. His chest pain symptoms were attributed to a likely musculoskeletal origin. He weighed 197 pounds. Neuropsychological testing resulted in a diagnosis of dementia NOS, and mild dementia probably vascular in origin with depression.
A February 2007 CT scan of the head was interpreted as showing old lacunar infarct in the left centrum semiovale.
In June 2007, the Veteran was evaluated for complaint of abdominal pain with diarrhea. One examiner commented that the Veteran's abdominal pain was deemed likely due to gastroenteritis and jejunum inflammation found on CT scan. Another examiner indicated that the abdominal pain may be due to genitourinary obstruction vs. spasm. A small bowel series x-ray examination was unremarkable. The differential diagnoses for his diarrhea included c. diff. toxin or viral gastroenteritis. The Veteran's weight had dropped to 183 pounds. Thereafter, the Veteran had recorded weights of 186 pounds in September 2007, 179 pounds in December 2007, 185 pounds in January 2008 and 186 pounds in March 2008.
A January 2008 VA primary care note attributed the Veteran's lower abdominal cramps to a recently increased dosage of Donezepil. In August 2008, the Veteran was given a history of abdominal pain with history of PUD/gastritis. He was restarted on Omeprazole. He weighed 185.7 pounds.
A September 2008 private treatment record included the Veteran's report of daily stomach upset which was not controlled with Prilosec. On examination, the Veteran weighed 190 pounds and demonstrated minimal epigastric and right upper quadrant tenderness. The impressions included GERD and poor memory questionable to CVAs. A follow-up appointment the next month noted that a CT scan of the head revealed old stroke with some early brain atrophy. The Veteran reported an improvement of stomach symptoms by taking Protonix. In April 2009, the Veteran reported a worsening of heartburn after misplacing his Prevacid prescription.
A January 2009 private general neurology report indicated that the Veteran had lost his license due to memory problems. His daughter reported that the Veteran had difficulty remembering day to day things, had lost interest in everything, and had been depressed for years but was now paranoid. The examiner found that the Veteran had severe dementia as well as Alzheimer's disease.
The Veteran's private records reveal recorded weights of 189 pounds (October 2008), 178.6 pounds (January 2009), 179.4 pounds (March 2009), 178.6 pounds (April 2009), 177.4 pounds (May 2009), 171.8 pounds (June 2009,) 180 pounds (July 2009), 183.8 pounds (August 2009), 185.4 pounds (September 2009), 187 pounds (October 2009), 179 pounds (December 2009), 186 pounds (March 2010), 189 pounds (April 2010), 190 (May 2010), 189.8 (July 2010), 187 (July 2010), 190 (August 2010), 190 (October 2010), 182 (November 2010), and 185 (November 2010).
In November 2010, the Veteran was hospitalized at a private facility due to abdominal pain, nausea, vomiting, diarrhea, hypotension and dehydration. He was diagnosed with acute gastroenteritis.
The Veteran attended a VA C&P examination in March 2010 to evaluate his service-connected PUD. The examiner indicated that review of the Veteran's VA clinic records included duodenal ulcer within the diagnostic list which had been mentioned by VA clinicians in passing. However, it was noted that the Veteran was not on any particular medications for duodenal ulcer. On questioning, the examiner could not obtain a reliable history from the Veteran and referred the Veteran for a specialist examination.
A March 2010 VA clinic record noted that the Veteran was restarted on a proton pump inhibitor (PPI) medication.
On VA C&P mental disorders examination in April 2010, the Veteran recalled several military experiences wherein he felt that his life, or that of another, was in imminent jeopardy causing intense fear and helplessness. He had drunk alcohol prior to service, but began to drink excessively during service. He reported having a stroke in the "fifties," but could not remember the approximate year. Following mental status examination, the examiner offered a diagnosis of cognitive disorder, NOS, and provided the following impression:
IMPRESSION & SUMMARY: With regard to psychiatric and/or emotional disturbance, [the Veteran] indicated that he has nightmares approximately twice per year, and occasional recollections if he is "reminded" of the traumatic experiences in Vietnam. The [V]eteran denied recurrent and intrusive recollections of his experiences, nor did he report flashbacks or hallucinations. He denied experiencing any significant emotional or physical distress when exposed to stimuli which remind him of the event. The [V]eteran denied symptoms of avoidance. He reports good interpersonal functioning and a full range of affect. The [V]eteran described his mood as "down sometimes" but attributes this to his frustrations about his vascular dementia, such as no longer being permitted to drive. [H]e attributes his nightmares to nocturia. In sum, the [V]eteran does not meet diagnostic criteria for PTSD.
The Veteran has displayed some mild cognitive impairment throughout the interview, as well as during an examination of his mental status. His history of vascular dementia is well documented in his medical record.
An April 2010 VA gastroenterology examination included the Veteran's description of early satiety, abdominal/rectal gas, dyspepsia, frequent reflux symptoms, dysphagia, and melena with history of gross blood in stools. He denied weight loss. The Veteran weighed 195.6 pounds. An upper endoscopy, performed in May 2010, was interpreted as showing findings suspicious for Barrett's esophagus and gastric antral erosions. The duodenum was described as normal. The biopsy results were interpreted as showing mild chronic inflammation throughout the colon which could explain the history of diarrhea.
An April 2011 VA gastroenterology note included the Veteran's report of recently being diagnosed with Chrohn's disease manifested by diarrhea and vomiting. The Veteran weighed 181.7 pounds. The examiner provided assessments of irritable bowel disease (IBD) per history of the Veteran's wife which, if true, was minimally active. The Veteran also had GERD with an EGD with suspected Barrett's one year previous which was not confirmed by normal biopsy results. A June VA clinic visit indicated differential diagnoses of abdominal pain/nausea secondary (2/2) to distended bladder vs. medications vs. Crohn's disease. Thereafter, the Veteran participated in VA recreational exercise program. He weighed 178 pounds in July 2011 and 180 pounds in September 2011.
A September 2011 VA geriatric psychiatry consultation offered diagnoses of dementia NOS (r/o vascular/Alzheimer), depressive disorder NOS, and alcohol dependence in full remission. A CT scan of the head was interpreted as showing old lacunar infarction of the left centrum semiovale and right ganglia as well as generalized cerebral and cerebellar atrophy.
The Veteran weighed 183 pounds on October 7, 2011, and 179.3 pounds on October 31, 2011. An October 2011 gastroenterology consultation noted the Veteran's report of episodic abdominal dull cramps, worse with bending or lying on side. He had a normal appetite and was maintaining his weight. The examiner indicated a putative diagnosis of Crohn's disease from a private physician. It was also indicated that the Veteran had a diagnosis of PUD with minimal epigastric discomfort on Omeprazole.
A November 2011 VA letter informed the Veteran that his laboratory results were negative for anemia.
VA clinic records reflect recorded weights of 186 pounds in January 2012, and 180.3 lbs. in February 2012.
The Veteran was afforded additional VA stomach examination in August 2012 with benefit of review of his claims folder. On examination, the Veteran weighed 178 pounds. His abdomen was slightly rounded with mild generalized tenderness to gentle, medium-deep quadrant palpation in all quadrants. The Veteran described difficulty chewing food which required more frequency drinks of water to prevent sticking. Following review of the claims folder, the examiner delineated between the peptic ulcer symptoms and nonservice-connected gastrointestinal symptoms as follows:
1. Peptic ulcer disease. CFile records show primary diagnosis 1965, in service and a VA Decision l[e]tter dated Apr 7, 2003 awarding service connection for condition. VA treatment records beginning Apr 1999 include multiple outpatient visits for gastroenterology problems, also hospitalization and endoscopy procedures; none document any recurrent ulcers at any location. NonVA treatment records (Dr. [S], office, Sep 2008 - Nov 2010; and Barnes Hospitalization ST. Louis, Nov. 2010 for gastr[o]enteritis or undetermined origin) also document no further ulcer disease. He denies any nonVA medications nowadays except for 1-2 Tums tablets daily as needed; currently takes omeprazole 20mg qam for history of ulcer disease, and a [sic] for diagnosis of Barrett's esophagus. Of note, gastroenterology endoscopies have diagnosed past esophagitis (never with active bleeding or any stricture) and Helicobacter pyelori infection, but consultant's note of Apr 2011 specifically states that esophageal biopsies (last May 2010) have been negative for Barrett's. He has never had any upper or lower bowel-related surgery.
2. Gastritis. Diagnosed first by Dec 2000 procedure here, and attributed to recent heavy alcohol ingestion then, as well as esophagitis and Helicobacter infection, which was treated. Second documented episode occurred Apr 2010 with brief hospitalization here and May 2010 endoscopy showing antral erosions, with biopsies negative for Helicobacter and also of esophagus negative for Barretts. Throughtout [sic] recent years he has been maintained on chronic daily omeprazole or similar drug control.
OF NOTE: Veteran has several other diagnoses unrelated to peptic ulcer disease but which contribute to abdominal symptoms. These include chrohns colitis (on chronic mesalamine, 1200mg tid); a history of pancreatitis (last known active 2003); lactose intolerance; colon polyps; and prostatism with obstructive symptoms, incontinence and urinary infections. He denies alcohol abuse in last 10 years. I have tried my best to distinguish and exclude those symptoms (lower abdominal cramping, rectal tenesmus, intermittent diarrhea, mild hematochezia (no melena), esophageal dysphagia to solid foods, and bladder urgency with possible spasms and flank pain) from symptoms related to the peptic ulcer disease under current evaluation.
Peptic symptoms nowadays include early satiety with mild upper abdominal discomfort (describes mostly ache or fullness feeling, occasionally burning, but not cramping) if he eats a normal-sized meal so he tries every day to eat 3-4 small meals. Also mild nausea almost daily, more often with empty stomach than after eating; but brief emesis only 1-2 times/week, never with bile, coffee grounds or red blood seen. He denies epigastric burning, and has only rare episode this year of retrosternal or upper throat burning (lasting less than 1-2 hours). He denies nocturnal awakenings from stomach symptoms. Other than avoiding cow milk, no dietary limitations followed. Denies weight loss. About 1 or 2 single days/month he has "a bad day with my stomach", describing anorexia, nausea but no worse emesis episodes, also including the lower abdomen cramps but no worsening diarrhea or hematochezia; he says "sits around home" instead of other activities that day. However, he denies bouts lasting more than 1 day, and he denies any urgent medical visits for acutely worse peptic symptoms. He denies staying in bed or any medically-directed immobility on worse days. (Last hospitalization for acute worse abdominal symptoms, pain and vomiting, was Nov 2010 at Barnes, St.Louis, diagnosed as gastroenteritis with no specific cause or diagnostic testing.
The VA examiner also provided the following opinion:
EXAMINER COMMENTS: In my medical opinion, [V]eteran's service-connected peptic ulcer disease is not manifested by moderate symptoms with recurring episodes of severe symptoms 2-3 times a year averaging 10 days in duration or with continuous moderate manifestations.
Rationale: Although [V]eteran describes episodes at least once a week of nausea with or without vomiting, they are brief and not refractory to his usual daily therapy or requiring addit[ion]al medications. He also denies exacerbations with severe epigastric pain, as long as he follows his usual dietary and meals pattern. His "worse days" of abdominal symptoms never last more than 1 day, and none cause impairment of health manifested by anemia, weight loss, bleeding. I judge his peptic-ulcer-related symptoms to be daily, but overall mild severity on chronic medication.
Based upon the same rationale, the examiner also opined that the Veteran's service-connected peptic ulcer disease is not manifested by moderately severe symptoms which are less than severe but with impairment of health manifested by anemia and weight loss or recurrent incapacitating episodes averaging 10 days or more in duration or at least 4 times per year, or severe symptoms with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health.
The Veteran also underwent additional VA mental disorders examination in August 2012. At this time, the Veteran reported a pre-service history of alcohol use which continued into service prior to his Vietnam deployment. He recalled losing the opportunity to advance in rank due to getting caught drinking after curfew. He continued his drinking pattern after his service discharge, often drinking over a case of beer per day. The examiner described inservice stressors which involved exposure to actual or threatened death, and having a response involving fear, helplessness or horror. The Veteran reported occasional dreams of these stressors, but denied having distressing dreams, reexperiencing or having physiologic reaction to these events. The Veteran avoided watching programs about war or gunfire. He described an inability to recall important aspects of his trauma, which the examiner felt was likely attributable to dementia. The Veteran denied a marked diminishment in interest of activities, feelings of detachment or estrangement, an inability to have loving feelings, or having a foreshortened sense of future. The Veteran reported difficulty falling asleep, which the examiner attributed to rumination about more recent events such as losing his home due to excessive drinking. The Veteran denied irritability or outbursts of anger. The Veteran reported concentration difficulties, which the examiner attributed to dementia. The Veteran denied hypervigilance or exaggerated startle response. Overall, the examiner indicated that the Veteran did not meet the full criteria for a PTSD diagnosis.
The VA examiner next commented that the Veteran's documented occasional periods of depressed mood did not appear to be related to military experiences, but rather, per the Veteran's report, rumination about negative events and psychosocial stressors. Following interview and review of the claims folder, the VA examiner provided the following opinion:
Competency[:] Is the Veteran capable of managing his or her financial affairs? ___ Yes X No. If no explain: Veteran has dementia NOS, which per his report results in his requiring his daughter and wife to remind him of basic things; unlikely he can manage his own financial affairs without assistance.
Remarks, if any: The results from this assessment are consistent with those contained in the medical record from multiple mental health professionals. The [V]eteran does NOT meet criteria for PTSD based on today's assessment, and review of records reveals that multiple psychiatric assessments have reached the same conclusion. The [V]eteran in the past has met criteria for Alcohol Dependence, but he reports he has been abstinent for many years, and it is unlikely that this currently affects his functioning.
The [V]eteran does meet criteria for Dementia NOS based on record review and his performance during this assessment. He had difficulty with memory and some executive functioning skills. It is at least as likely as not that these symptoms NOT attributable to his military service. Per his report, these symptoms began after a TIA which caused him to have memory impairments so severe that he was unable to continue to work.
The [V]eteran also meets criteria for Depressive Disorder NOS, which involves occasional low mood and occasional irritability. It is at least as likely as not that these symptoms are NOT attributable to his military service, as they began decades later, and appear to be in response to psychosocial stressors and adjustment to his impairments relating to dementia.
In sum, the [V]eteran does not meet criteria for PTSD, and does not meet criteria for any Axis I diagnosis that is attributable to his military service on an as likely as not basis. Although the c-file contains mention of diagnoses made while the [V]eteran was on active duty, based on today's assessment and review of medical records dating back many years, it cannot be concluded on an as likely as not basis that the symptoms described in or implied by those antiquated diagnoses constitute a current source of mental health concern for the [V]eteran. It is noted that many of the symptoms attributed to those diagnoses (e.g., diarrhea, constipation) are physical in nature, and are not consistent with the symptoms of PTSD in DSM-IV-TR.
Thereafter, a June 2012 VA geropsychiatry record reflected Axis I diagnoses of dementia NOS rule out (r/o) vascular/Alzheimer, depressive disorder NOS and alcohol dependence in full remission. A July 2012 gastroenterology consultation included the Veteran's report of doing well with 1 bowel movement (BM) every day (QD) usually formed, and without hematochezia. He experienced lower abdominal pain after some meals and other times when hungry which had no relation to his bowel movements. It was indicated that colonoscopy biopsy samples in May 2010, which showed mild nonspecific chronic colitis and an adenomatous polyp, suggested possible Crohn's colitis. The examiner offered an impression of irritable bowel disease, presumptive Crohn's disease, which seemed to be in remission. The Veteran's intermittent abdominal pain was deemed unlikely to reflect active Crohn's disease, and doubtfully related to stricturing. The Veteran's PUD\esophagitis was described as "well-controlled." The Veteran weighed 181 pounds in June and 178 pounds in July.
Acquired psychiatric disorder
The Veteran has argued that his nervous conditions and "black outs" are related to service and/or exposure to Agent Orange. See VA Form 21-4138 received March 2001. He claims to be a recipient of the Combat Infantryman Badge (CIB). He alleges treatment since the late 1970's for PTSD and nervous problems. See VA Form 21-4138 received May 2001. He also alleges that a service-related bacteria problem has resulted in memory loss. See Veteran's written statement received in July 2001. He argues that he has been affected by war events, and has been battling alcoholism since Vietnam. See Veteran's written statement received in March 2004.
As indicated above, VA has corroborated the Veteran's account of being exposed to combat stressors during his Vietnam service. The Board finds, however, that the Veteran has not manifested PTSD for any time during the appeal period which affords a basis to service connect his psychiatric symptoms pursuant to 38 C.F.R. § 3.304(f).
The most persuasive evidence in this case concerning a PTSD diagnosis during the appeal period involves the formal VA C&P examinations conducted in April 2010 and August 2012. These examinations were based upon formal interview of the Veteran and mental status examination which could be compared to the evidence available in the claims folder. The April 2010 VA examiner opined that the Veteran did not meet the formal criteria for a PTSD diagnosis due to the Veteran's lack of reexperiencing of his stressor events. Similarly, the August 2012 VA examiner extensively evaluated all the criterion for a PTSD diagnosis under DSM-IV and arrived at the same conclusion. A March 2003 VA examiner essentially arrived at the same conclusion.
The evidence in favor of a PTSD diagnosis during the appeal period includes a February 2002 psychiatric consultation in the VA clinic setting which stated that the Veteran probably has some "ptsd issues." This assessment holds significantly less probative weight than the VA opinions cited above, as it does not directly diagnose PTSD nor provide a clear explanation as to whether the criteria for a PTSD diagnosis were met. It is also a clinical impression without access to the extensive evidentiary record.
An April 2002 gastroenterology consultation noted that the Veteran was being treated for depression and had "probable" PTSD. This assessment is of limited probative value as it is outside the specialty area of the gastroenterologist, and appears only to be relating report of relevant medical history rather than being an actual diagnosis. To the extent a diagnosis was intended, the terminology "probable" is not definitive and holds significantly less weight than the reasoned analyses offered by the VA C&P examiners in April 2010 and August 2012.
The Board has also considered a May 2003 VA C&P examiner comment that the Veteran "may at one time have shown the complete syndrome" of PTSD. At that time, the examiner explicitly stated that PTSD was not shown and the examiner did not specify any time during the appeal period when a PTSD diagnosis conformed to the criteria of DSM-IV. This statement, therefore, is of limited probative weight when compared to the extensive evaluations conducted by the April 2010 and August 2012 VA C&P examiners.
Otherwise, the only other evidence suggesting that PTSD has been present during the appeal period consists of the Veteran's own self-diagnosis. Clearly, the Veteran is competent to report his psychiatric symptoms that he experiences. However, the Board places significantly greater probative weight to the opinions of the April 2010 and August 2012 VA C&P examiners, who possess greater training and expertise than the Veteran in determining whether the Veteran manifests PTSD according to the DSM-IV criteria.
The Board next considers whether the Veteran's other diagnosed psychiatric disorders were either first manifested in service, or due to event(s) during active service. The postservice record reflects multiple diagnoses which include alcohol dependence, major depression, depression, anxiety disorder NOS, depression NOS and dementia.
Clearly, the Veteran was evaluated for psychiatric symptoms during service wherein he self-reported gastrointestinal symptoms when nervous or upset, and experiencing feelings of anger towards authority figures. One examiner described the Veteran as a "[c]ompulsive neurotic with paranoid tendencies." An August 1964 psychiatric consultation provided an impression of depressive reaction and psychosomatic gastrointestinal disturbance. Another examiner in October 1965 provided an impression of nervous stomach.
However, the evidentiary record does not reflect any evaluation for psychiatric complaints until February 2002, at which time the Veteran himself reported memory loss problems which appeared coincidentally with his TIA in 1999. Notably, the Veteran had been assessed with questionable alcohol dementia as early as 1997.
Thereafter, the Veteran has provided multiple explanations regarding the cause of his psychiatric symptoms, to include his Vietnam experiences (VA psychiatric consultation dated February 2002), being on disability and feeling depressed most of the time (March 2002 VA geropsychiatric consultation), having a monotonous life-style with family conflicts (VA C&P examination dated March 2003), and chronic medical problems which interfered with his life (VA clinic record dated August 2003). In December 2003, the Veteran reported that he was unaware of the cause of his anxiety. The Veteran now argues that his current psychiatric complaints have been persistent and recurrent since service.
The most persuasive evidence in this case concerning the nature and etiology of the Veteran's currently manifested psychiatric symptoms involves the formal VA C&P examination conducted in August 2012. This examination was based upon formal interview of the Veteran and mental status examination which could be compared to the evidence available in the claims folder. As reflected in the examination report, this examiner was fully aware of the STR entries as well as the Veteran's allegation of nervousness and gastrointestinal symptoms which have been chronic since service. This examiner concluded that the Veteran met the criteria for diagnoses of dementia NOS and depressive disorder NOS which were not related to events during active service. This examiner attributed the Veteran's current psychiatric problems to the psychosocial stressors he has experienced since his TIA in 1999 as well as adjustments relating to dementia. The examiner also explained that the inservice problems were "antiquated" in nature and did not constitute a current source of mental health concern for the Veteran.
The August 2012 VA C&P opinion is consistent with the finding of the March 2003 VA examiner who found "no clear relation" between the Veteran's diagnosed anxiety disorder NOS and his "military experience." That opinion was also based upon an extensive interview and mental status examination of the Veteran.
On the other hand, the only evidence suggesting that the Veteran's current psychiatric disorders either first manifested in service, or results from event(s) during service, consists of the Veteran's own self-diagnosis and opinion. Clearly, the Veteran is competent to report his continuity of psychiatric symptomatology since service.
However, the Veteran's current allegations of continuity of symptomatology are not consistent with the evidentiary record which does not reflect any report of psychiatric symptomatology until 2002, which is approximately 36 years after service separation. These recollections have reduced probative value given that the Veteran has demonstrated cognitive decline with poor memory recall since recalling events many decades prior. For instance, during the April 2010 VA examination, the Veteran recalled having a stroke in the "fifties" while, in fact, his TIA occurred in late 1990.
In any event, and more importantly, the August 2012 VA examiner specifically considered the Veteran's allegation of continuity of psychiatric symptomatology since service and found upon examination that the Veteran's current psychiatric complaints were directed towards his current psychosocial stressors and adjustment to his dementia disorder. Overall, the Board places significantly greater probative weight to the opinion of the August 2012 VA C&P examiner, who possess greater training and expertise than the Veteran in determining the current source of the Veteran's psychiatric impairment.
The Veteran has also argued that his current psychiatric disorder(s) result from herbicide exposure during active service. However, the Board finds that the Veteran does not possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation between a psychiatric disorder and herbicide exposure. See 38 C.F.R. § 3.159(a)(2) (competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions). See generally King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Thus, this aspect of the Veteran's opinion holds no probative value.
The Board further notes that the Veteran was not diagnosed with a psychosis in service or within the first postservice year.
In sum, the Board finds that the Veteran has not manifested PTSD during the appeal period. The Board also finds that the Veteran's variously diagnosed psychiatric disorders, to include dementia and depression NOS, first manifested many years after service, and are not related to event(s) during active service; a psychosis did not manifest in service or within the first postservice year. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57. Additionally, the provisions of 38 U.S.C.A. § 1154(b) cannot supplement the diagnosis and nexus components necessary in this case. Libertine, 9 Vet. App. 521, 522-23 (1996). As such, the Veteran's claim is denied.
PUD
The Veteran alleges that his service-connected digestive disorder has resulted in symptoms such as swelling of the feet and ankles, loss of memory, high white blood cell count, and colon polyps. See Veteran's written statement received in July 2001. He argues that his 10 percent rating does not reflect his need for dietary modifications, and that his symptoms have become more frequent for longer durations of time. See Veteran's written statement received in March 2004.
Applying the criteria to the facts of this case, the Board finds that the criteria for an initial rating greater than 10 percent for service-connected PUD have not been met for any time during the appeal period. In this respect, the credible lay and medical evidence reflects that the Veteran's service-connected PUD has been manifested by symptoms of early satiety with mild upper abdominal discomfort, mild nausea, brief emesis, epigastric burning and anorexia which have not resulted in moderate ulcer disease with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, continuous moderate manifestations, anemia or weight loss.
As reflected above, the Veteran has a complicated history of multiple gastrointestinal disorders. He had an inservice history of gastrointestinal complaints which included abdominal burning, anorexia, weight loss, fatigue, aerophagia and alternating episodes of diarrhea and constipation.
Postservice, the Veteran has been diagnosed with a multitude of gastrointestinal disorders which include PUD, duodenitis, colitis, gastritis, diverticulitis, possible portal gastropathy, internal hemorrhoids, colon polyps, pancreatitis, malabsorption syndrome due to pancreatitis, lactose intolerance, functional disorder, medication intolerance and a history of Helicobacter pylori infection.
The Veteran's has been service-connected for PUD, but no other gastrointestinal disorder. VA regulations recognize that diseases of the digestive system, while differing in the site of pathology, produce a common disability picture in terms of symptomatology. 38 C.F.R. § 4.113. The Board also is also cognizant of the holding in Mittleider v. West, 11 Vet. App. 181 (1998), which held that where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability.
In this case, the Board obtained an August 2012 VA opinion to delineate, to the extent medically possible, the symptomatology related to service-connected PUD as opposed to the other diagnosed nonservice-connected conditions.
The August 2012 VA examiner specifically attributed the Veteran's symptoms of early satiety with mild upper abdominal discomfort, mild nausea, brief emesis, epigastric burning, and anorexia to the service-connected PUD.
The August 2012 VA examiner also specifically found that symptoms of lower abdominal cramping, rectal tenesmus, intermittent diarrhea, mild hematochezia, esophageal dysphagia to solid foods and bladder urgency with possible spasms and flank pain were due to nonservice-connected diagnoses of Chrohn's colitis, pancreatitis, lactose intolerance, colon polyps and prostatism with obstructive symptoms, incontinence and urinary infections.
At the outset, the Board finds that the VA examiner's opinion is a thoughtful, well-reasoned opinion which is based upon an extensive review of the Veteran's entire treatment history as well as the examiner's own medical expertise. The opinion is also consistent with the evidentiary record, as extensively reported above. For example, none of the clinical records attribute the Veteran's diarrhea symptoms (which are a primary complaint) to the service-connected PUD. Rather, various assessments have been provided which include dietary considerations or medications (VA gastroenterology consultations dated April 2002, July 2003 and January 2004 and VA geropsychiatry consultation dated July 2005) and chronic pancreatitis with malabsorption (VA C&P examination dated January 2003 and VA clinic record dated November 2003).
On the other hand, the only opinion of record which attributes all of the currently manifested gastrointestinal symptoms to service-connected origin consists of the Veteran's own personal self-diagnosis and opinion. The Veteran is clearly competent to describe all of his currently manifested gastrointestinal symptoms. However, the Board places significantly greater probative weight to the opinion of the August 2012 VA C&P examiner, who possess greater training and expertise than the Veteran in determining the current causes of the Veteran's gastrointestinal symptoms. Similarly, a VA C&P examiner in January 2003 indicated that the Veteran's current diarrhea complaints were not the same as experienced during military service.
On this record, the Board concludes that the Veteran's PUD symptoms include early satiety with mild upper abdominal discomfort, mild nausea, brief emesis, epigastric burning and anorexia. The Board may not consider, however, any gastrointestinal symptoms such as lower abdominal cramping, rectal tenesmus, intermittent diarrhea, mild hematochezia, esophageal dysphagia to solid foods, and bladder urgency with possible spasms and flank pain in this adjudication.
Here, the record includes the Veteran's description of "occasional" nausea and vomiting when drinking too much (private medical record dated 1994), a history of GERD symptoms usually well-controlled with Prilosec (private medical record dated October 1997), break-through stomach pain "every now and then" (VA C&P examination dated January 1998), abdominal pain (VA hospitalization records dated September 2001), daily bouts of abdominal pain with nausea and vomiting once per week (VA C&P examination dated January 2003), stomach discomfort, abdominal pain and inability to hold food down (VA clinic record dated October 2003), abdominal pain and burning with 7-8 episodes of vomiting (VA clinic record dated May 2004), vomiting episodes which occurred once per month and last up to four days in duration with 3 to 4 attacks of the longer episodes per year (September 2005 Board hearing), poor appetite (August 2006 VA clinic record), abdominal pain (June 2007), daily stomach upset (private medical record dated September 2008), abdominal pain, nausea and vomiting (private hospitalization record dated November 2010), and early satiety with mild upper abdominal discomfort, mild nausea almost daily, brief emesis only 1-2 times/week absent bile, coffee grounds or red blood seen, rare episodes of epigastric burning lasting less than 1-2 hours, and 1 or 2 single days/month wherein he experienced anorexia, nausea and lower abdomen cramps that lasted less than 1 day in duration. (VA examination report dated August 2012).
Overall, the Board finds that the Veteran has not described, and the evidence does not reflect, moderate ulcer disease with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or continuous moderate manifestations. The VA examiner in August 2012 also opined that the Veteran's description of disability did not rise to this level of disability.
The Board further finds no evidence of anemia caused by service-connected PUD. A May 2005 VA admission noted that laboratory work at that time was suggestive for anemia, but the Veteran was not later diagnosed or treated for anemia. A November 2011 VA work-up specifically included a letter sent to the Veteran indicating that he did not have anemia.
The Board next finds no evidence of "minor" or "substantial" weight loss during the appeal period. The STRs reflect a history that the Veteran weighed 140 pounds before the onset of his service-connected PUD. He weighed 125 pounds upon discharge. The postservice medical record reflects a history of steady weight gain to the point of obesity. The Veteran weighed 163 pounds on VA examination in January 1998 and, since then, his weight has ranged from 171.8 pounds to 193 pounds. The opinion of record reflects that the Veteran has an ideal weight of 148 pounds. Thus, the Veteran has not experienced a "minor" or "substantial" weight loss from the "baseline" weight before the onset of PUD.
The Veteran has argued that his service-connected PUD results in symptoms such as swelling in the feet, memory loss, a high white blood cell count and colon polyps. This opinion holds no probative value as the Veteran does not possess the requisite medical training, expertise, or credentials needed to render such a complicated diagnosis. See 38 C.F.R. § 3.159(a)(2); King, 700 F.3d 1339 (Fed.Cir.2012). To the extent that his opinion holds any probative value, it is greatly outweighed by the opinion from the August 2012 VA examiner who has greater expertise in this subject matter.
Additionally, the Veteran has testified that his PUD is responsible for his multiple hospital admissions. The record reflects hospitalizations for chest pain symptoms and gastritis (1994), unstable angina, duodenitis and gastritis (October 1997), Helicobacter pylori gastritis (December 2000), chest pain of non-cardiac origin (March 2001), alcohol abuse, dehydration and abdominal pain (September 2001), chest pain and chronic pancreatitis (May 2005), diarrhea (reportedly in 2006), chest pain of likely musculoskeletal origin (February 2007), and acute gastroenteritis (November 2010). His perceptions that these admissions represent a manifestation of PUD are not supported by the diagnoses recorded at those hospitalizations, or the August 2012 VA medical examiner opinion which delineated between the service-connected versus nonservice-connected gastrointestinal symptoms.
In sum, the Board finds that the Veteran's service-connected PUD has been manifested by symptoms of early satiety with mild upper abdominal discomfort, mild nausea, brief emesis, epigastric burning and anorexia which have not resulted in moderate ulcer disease with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, continuous moderate manifestations, anemia or weight loss. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57.
To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1).
The provisions of 38 C.F.R. § 3.321(b) state as follows:
Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.
In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id.
If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id.
VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996).
In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress.
The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
The Board is aware of the Veteran's complaints as to the effects of his service-connected PUD have had on his activities of work and daily living. As held above, the medical evidence demonstrates PUD symptoms of early satiety with mild upper abdominal discomfort, mild nausea, brief emesis, epigastric burning, and anorexia to the service-connected PUD. These symptoms are reasonably encompassed in the applicable schedular criteria. The Board is aware that the Veteran alleges additional gastrointestinal complaints to service-connected PUD, but the Board has found that the medical evidence has attributed his other gastrointestinal complaints to nonservice-connected cause. In the Board's opinion, all aspects of the Veteran's service-connected PUD disability are adequately encompassed in the assigned schedular rating. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008).
ORDER
The appeal for service connection for a psychiatric disorder, to include PTSD, is denied.
The appeal for an increased initial disability evaluation in excess of 10 percent for peptic ulcer disease is denied.
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs